Suthers Claims Problem with Transfers
by Ari Armstrong, October 30, 2006
During Governor Owens's October 27 press conference condemning Amendment 44, Colorado Attorney General John Suthers reiterated the claim made in the Blue Book about transfers to minors ages 15 to 17. I asked him to explain his statements. Following the transcript of our discussion I criticize his statements.
Me: "Mr. Suthers: Could you please explain the relevance of the felony statute of contributing to the delinquency of a minor? Doesn't that contradict what you just said about the nature of the law?"
Suthers: "No. Because any defense attorney worth their salt will argue in defense of anybody charged with contributing to the delinquency of a minor, that voters have specifically legalized the transfer of less than an ounce by approving this."
Me: "Yea, but that statute explicitly refers to federal, state, and local ordinance, so it would still be illegal by federal and local ordinance [as well as by state law] for minors to own, so wouldn't it still apply?"
Suthers: "What you have done in drafting this has been so sloppy..."
Me: "Okay, I have not drafted it."
Suthers: "Well, it is so sloppy, by legalizing the transfer of less than an ounce to someone over 15, in a very specific way, the defense council will argue that a general statute about contributing to the delinquency of a minor is overruled by the specific action of the voters."
Me: "Okay, well, thanks for your opinion."
Suthers: "You bet."
I stand by my previous analysis of the claim that Suthers repeated. Suthers's case is weak for several reasons.
Under the section of statute amended by Amendment 44, possession of marijuana by anyone under 21 remains illegal. The felony statute for contributing to the delinquency of a minor clearly states, "Any person who induces, aids, or encourages a child to violate any federal or state law, municipal or county ordinance, or court order commits contributing to the delinquency of a minor."
Amendment 44 would merely remove the petty offense for the transfer to a minor age 15 to 17. There's nothing about the change that suggests that the felony statute would be overturned.
Suthers claims that defense attorneys might make an argument about the voters allegedly legalizing such transfers. Perhaps they would. However, court decisions are not based only on the arguments of defense attorneys (and surely Suthers has not been convinced otherwise). It so happens that prosecutors can also present a case, and they'll make the very straight-forward argument that the felony statute is still there and it still applies.
All a prosecutor needs to do is pull up the arguments of SAFER's own attorney. Even the drafters and proponents of Amendment 44 recognize that the felony statute makes transfers to minors illegal, any prosecutor worth his salt would argue.
Besides, the legislature is sure the adjust the statute within a few weeks, anyway. Amendment 44, if approved, takes place on December 7. In January the legislature will certainly adjust the statute, if only for cosmetic purposes. I suspect that the legislature will also ensure that transfers to adults ages 19 to 20 are illegal. I understand that SAFER's Mason Tvert has already expressed his support for such a change.
Not all things that are properly legal for adults are properly legal for minors. The legal theory is that rights are based on the rational faculty, and minors have not yet developed sufficiently to acquire their full rights. They are limited in their ability to sign contracts, get married, have sex, and buy certain weapons and drugs. The purpose and consequence of Amendment 44 is to remove legal penalties for adults (21 and over) to possess up to an ounce of marijuana. Suthers's claim about transfers to minors is a diversionary tactic that attempts to use a concern for minors to perpetuate the violation of the rights of adults.